On 21 December 2016, the Court of Justice of the EU confirmed the General Court Judgment annulling a Commission decision on the issue of selectivity under state aid rules in the Lübeck airport case.

To remind you, the European Commission had opened a formal investigation procedure, notably concerning airport charges. This procedural decision was challenged by the airport before the General Court, which annulled it. Both the General Court and the Court of Justice considered that the selectivity criteria to assess the qualification of State aid should be assessed at airport level if its manager sets up the airport charges. This landmark case overturned the Commission’s practice that tended to assess the selectivity at State level as far as airport charges were concerned.

Following this annulment, on 7 February 2017 the Commission adopted several decisions regarding public measures in favour of Lübeck airport and airlines.

First, the Commission assessed several measures concerning the financing and privatization of Lübeck airport in the light of its 2014 Aviation Guidelines. Following its in-depth investigation, the Commission concluded that the City of Lübeck’s re-purchase of the majority of shares in Lübeck airport from Infratil did not involve any aid, as it was in line with market terms.

The Commission’s investigation also concerned public funding of the airport. As Lübeck airport had ceased its main activity and no longer operated scheduled and charter flights, the Commission considered that the public measures in question did not fall under EU State aid rules.

The Commission then assessed the general tariffs applied to airlines (de-icing charges and airport charges). In light of the above-mentioned jurisprudence, the Commission had no choice but to conclude that they did not involve any aid to the airlines in question as they were not selective.

The final decision of the Commission adopted on 7 February 2017 concerns an agreement concluded between Lübeck airport and Ryanair in 2000. The agreement provided for the level of airport charges imposed to Ryanair and marketing contributions in its favour. After its assessment under the 2014 Aviation Guidelines, the Commission considered that this agreement did not involve any aid in favour of Ryanair as the deal would have been acceptable for a private operator.

The Commission must now close its last case regarding Lübeck airport and Ryanair concerning agreements concluded in 2010.

The new approach of the Commission following the recent jurisprudence of the Court of Justice may finally bring some legal certainty to airports that adopt general airport charges that do not favour any airline, as they will not have to draft individual business plans for transparent and non-discriminatory rebates on airport charges.